The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on November 6, 2019 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Hearing Loss Report with the WCB on August 3, 2018. She attributed her gradual hearing loss to her work experience in general and specifically noted five past employers. Included with the report was an July 3, 2018 audiogram that indicated "…bilateral moderate rising to mild sensorineural hearing loss."

The employer provided the WCB with an Employer Hearing Loss Report on August 7, 2018. It was noted that the worker had been employed with the employer from April 13, 1981 to July 31, 1998. During that time, the worker's job duties included working in a quiet office except for the period of March 1998 to July 1998 when the worker was exposed to five to eight hours a day of loud noise. The employer further noted that the worker was provided with ear plugs.

On August 20, 2018, the worker discussed her claim with a WCB adjudicator. She advised the adjudicator that she noted a decrease in her hearing while she worked for the employer. She further advised that her job duties involved her working in a noisy area of her job site when that particular department required extra help or her department was slow. She also noted that for her last four months with the employer, she was only working in the department with a high level of noise.

The WCB received a copy of a 2009 audiometric record from one of the worker's previous employers and an Employer Hearing Loss Report was provided to the WCB on September 7, 2018. The report noted that the worker's job duties were performed in an office setting and noise level testing conducted in that space recorded levels at 60 decibels. An Employer Hearing Loss Report for the worker's current employer was received by the WCB on September 13, 2018. The report noted that the worker was exposed to noxious noise sporadically, when performing one of her job duties and that hearing protection in the form of ear plugs were provided.

A WCB ENT (ear, nose and throat) specialist reviewed the worker's file on September 17, 2018 and opined that the audiological information on file suggested a "cookie-bite configuration" which was not indicative or typical of noise induced hearing loss.

On September 18, 2018, the worker was advised that her claim was not acceptable as it did not meet the WCB's criteria for noise induced hearing loss.

The worker requested reconsideration of the WCB's decision to Review Office on October 4, 2018. In her submission, the worker noted that she had her hearing retested on September 28, 2018 for a second opinion. She advised that the audiologist who conducted the hearing test did not agree with the opinion of the WCB. The worker stated her view that her exposure to noise with the employer, without hearing protection, contributed to her hearing loss. On October 9, 2018, Review Office returned the file to Compensation Services for further investigation.

The WCB then obtained a copy of the worker's September 28, 2018 hearing assessment. The audiologist who conducted the assessment indicated that "Results show a mild to moderate hearing loss bilaterally. Both losses have been deemed to be sensori-neural in nature." Hearing aids for both ears were recommended.

The worker's file and the September 28, 2018 audiogram were reviewed by the WCB ENT specialist on October 16, 2018 who noted the audiogram showed some improvement in the worker's hearing in the right ear at lower frequencies. The WCB ENT specialist concluded that "The configuration of this audiogram is still not diagnostic of NIHL" and noted that there was no change to their opinion of September 17, 2018.

On October 16, 2018, the WCB advised the worker that the new information was reviewed but there was no change to the initial decision and her claim remained not acceptable.

On October 20, 2018, the worker requested reconsideration of the WCB's decisions to Review Office. The worker noted that the audiograms conducted on July 3, 2018 and September 28, 2018 both indicated she had sensorineural hearing loss, which was indicative of a noise related loss. She further noted that she was exposed to loud noise, sometimes more than eight hours a day without hearing protection or hearing tests, when employed with the employer.

Review Office determined on February 1, 2019 that the worker's claim was not acceptable. Review Office acknowledged and accepted that the worker was exposed to loud noise when she worked for the employer; however, the evidence did not support that she was exposed to an average of 85 decibels for eight hours a day for a minimum of two years. Review Office considered the employment history of the worker and found no evidence of occupational noise exposure that met the WCB's noise induced hearing loss policy criteria. Further, Review Office placed weight on the WCB ENT specialist's September 17, 2018 opinion that the configurations of the worker's audiograms were not typical or diagnostic of noise induced hearing loss but were suggestive of a genetic or heredity type of hearing loss. Review Office concluded the evidence did not support that the worker was exposed to occupational noise and her claim was not acceptable.

The worker filed an appeal with the Appeal Commission on April 19, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

WCB Policy 44.20.50.20, Noise-Induced Hearing Loss (the "Policy") states, in part, as follows:

Not all hearing loss is caused by exposure to noise at work. A claim for noise-induced hearing loss is accepted by the WCB when a worker was exposed to hazardous noise at work for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis. For every increase in noise level of 3 decibels, the required exposure time will be reduced by half.

Worker's Position

The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.

The worker outlined her position in a written submission dated April 19, 2019 in which she outlined her view that exposure to noise during her 17.5 years with the employer caused her sensori-neural hearing loss. The worker stated her view that sensori-neural hearing loss is indicative of noise related hearing loss. She noted that the audiologist reports submitted do not suggest that her hearing loss is genetic or inherited, nor do those reports state that her hearing loss is not noise-related. The worker also noted that she does not have a family history of hearing loss.

The worker stated that during the years she worked with the employer she was constantly working in a noisy environment, including on weekends and overtime, and that no hearing protection was used or offered in that environment. In a further written submission dated April 19, 2019, the worker advised that although she was not hired to work in the noisy environment in the workplace, the employer's practice was to call her into that work environment when needed to complete the work there.

In sum, the worker's position is that she incurred hearing loss as a result of exposure to a noisy work environment during the course of her 17.5 year-employment with the employer, and that as a result, her claim should be accepted.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue on this appeal is whether or not the worker's claim is acceptable. The worker has claimed long-term exposure to noxious levels of occupational noise resulted in noise-induced hearing loss (NIHL). For the appeal to be successful, the panel must find that the worker sustained NIHL during the course of her employment resulting from exposure to noise levels as set out in the Policy. The panel is unable to make that finding, for the reasons that follow.

The Policy requires that, for a claim of NIHL to be compensable, the worker must have been exposed to noxious noise at work for a minimum of two years, based generally upon an average of 85 decibels for 8 hours of exposure on a daily basis. For every increase in noise level of 3 decibels, the required exposure time is reduced by half. This is the threshold that must be met. Based on the evidence before us, the panel is not satisfied that this noise threshold has been met.

The worker's testimony was that she was hired by the employer in 1981 to work in an office environment and continued in that position until early 1998 when she was re-assigned to working full-time in the loud production environment where she remained until July 1998 when she left that employment.

The worker stated that throughout the period from 1981 through 1998, she would from time to time be called into working in the production environment, to help meet production deadlines. In this environment, she stated there were multiple machines running simultaneously and it was very loud as a result. This was the setting in which the worker worked full-time from March 30, 1998 through to July 31, 1998.

The worker confirmed that in her subsequent employment with other employers she was not exposed to any similarly noisy environments, or if there was noise, hearing protection was used.

The worker acknowledged that her exposure to noise during the period from 1981 to March 30, 1998 was erratic and irregular. Her hours in the production environment were not regular, but would include overtime hours and weekends, from time to time. She described herself as effectively a casual employee in that aspect of the employer's business.

The panel noted the worker's file does not contain information on the decibel levels in the employer's production environment; however, even if the evidence confirmed that the noise level met the threshold level of 85 decibels under the Policy, the evidence does not support a finding that the worker's noise exposure was over a period of at least two years at 8 hours per day. The employer stated that the worker's noise exposure when she was working full-time in the production environment for four months was 5-8 hours daily depending upon work volumes. The panel has to assume that there was even less exposure when the worker was only intermittently called into working in that environment in the previous 17 years.

If the noise exposure threshold is not met, a claim for NIHL cannot be accepted by the WCB.

On the evidence, the panel is also unable to find that the worker's hearing test results are consistent with NIHL. As set out in the Policy, not all hearing loss is caused by exposure to noise at work.

The audiological reports on file confirm that the worker has hearing loss. The report dated July 23, 2018 indicated bilateral moderate rising to mild sensorineural hearing loss. The audiologist stated that the audiogram results are "not quite typical for noise induced hearing loss." The audiograms on file were reviewed by the WCB ENT specialist on September 17, 2018 who noted the results show "…a cookie-bite configuration. This configuration is not typical or diagnostic of NIHL. It is suggestive of a genetic or hereditary type of hearing loss."

A further audiological assessment was done at the worker's request on September 28, 2018. That report also indicated mild to moderate sensorineural bilateral hearing loss. Hearing aids were recommended for both ears. On October 16, 2018, these results were also reviewed by the WCB ENT specialist who commented "This new audiogram shows some improvement in the hearing in the right ear lower frequencies. The configuration of this audiogram is still not diagnostic of NIHL. Therefore, there is no change in the opinion I provided on Sept. 17, 2018."

The panel also noted that while the worker denied any family history of hearing loss in her initial contact with the WCB on August 20, 2018, a family history was disclosed on the screening questionnaire she completed for her current employer, dated October 18, 2017.

The panel accepted the opinion of the WCB ENT specialist that the audiological findings do not support a diagnosis of NIHL.

The panel therefore finds, on a balance of probabilities, that the worker did not sustain a NIHL during the course of her employment due to exposure to levels of noxious noise as set out in the Policy. The worker's claim is not acceptable and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of December, 2019